Opinion of the Court-STILES, J. Mar. 1894.] pensation by commissions on the premiums paid by the city, he, respondent, then being a stockholder of the agent company, and interested in the commissions paid. The findings upon these charges are in accordance with the allegations, except that respondent is found to be a trustee only of the Washington, etc., Company. It is urged that this must be taken as a finding that he was a stockholder, since, under the law, no one but a stockholder can be a trustee of a corporation; and that whether this be so or not is immaterial, because it is a finding of interest sufficient to meet the charter prohibition. But charges of this kind ought to be proven as made, and a variation of this gravity ought to defeat them. A stockholder would be necessarily interested in the proceeds of any contract with his company; but it might not be so with a trustee who might be holding such an office nominally, and for the mere accommodation of some friend. Any business man knows how mercantile and other private corporations are conducted in this respect. It may be said that a presumption would attach from the finding that respondent was a trustee, that he was a stockholder also, but if he was a stockholder in fact, why did not the finding respond to the charge and say so? The very fact of the variance causes a suspicion that the proofs did not warrant more than was found. It may be a question whether a mere naked trustee would come within the charter provision, although under the rules of agency a contract in the procurement of which he took part might be avoided. The court below found this part of the answer bad, and we concur in the finding. Another branch of the charges relates to the respondent's alleged want of attention to the duties of his office. Under the charter the board of public works fills a very large place in the executive of the city. In fact, aside from the fire, police and treasury departments, it is pretty Opinion of the Court-STILES, J. [8 Wash. much all there is of the executive excepting such powers of supervision as are confided to the mayor. Everything in the shape of public work, the water system, the streets, the sewers, wharves, parks, lights, city property and street improvements and assessments are within the control of this board. The board consists of three members, at a salary of $125 a month, and it would seem that they must be very busy men. The charter requires that the board shall hold regular meetings twice each month, and special meetings at such times as it may appoint or the president may call. It has appointed three meetings each week, which usually last about one hour each. The mayor finds that the respondent has confined his services as a member of the board to attendance upon these meetings, and that he has not personally visited or inspected any of the public works going on under the direction of the board, although many that were important and expensive were being prosecuted. In some instances pointed out there was, according to the findings, incompetency in management, and unnecessary and extravagant expenditure; and reports to the council upon these and other matters were joined in by respondent without personal knowledge of them. The substance of the findings accords with the charges. But over against all that the mayor alleges, the respondent claims that by attending the appointed meetings and performing the first duty which the charter enjoins, viz., that of making rules and regulations for the government of the board and its officers and employés, he has done all that the charter requires. This position is supported by further reference to the charter which authorizes the board to appoint a superintendent of water works, a superintendent of sewers, a superintendent of buildings, bridges and wharves, a street commissioner, and a city engineer, upon whom rests the duty of inspecting and supervising the actual operations and property of the city. And it is also urged Mar. 1894.] Opinion of the Court - STILES, J. that one member of a board of three can do nothing officially except at a meeting with the others. But in our judgment it will not do to consider this board as if it were nothing but a formal body of in-door overseers gaining its knowledge of the city's affairs by reports from subordinates; or as if it were a legislature or a court. It is certainly constituted as if it were intended to be a working body, and one whose members would be kept well occupied during regular business hours, either in knowing what was being done by subordinates outside, or in preparing for what is to be done on the inside, or keeping informed as to the multitude of affairs committed to their charge. The salary is a fair one, payable monthly, implying that the incumbent is not engaged for job work, or upon a per diem, but that his services during business hours are to be at the command of the city, if necessary to the proper conduct of its business. What may be exactly the proper range of duties for each member of the board we cannot undertake to say, but are satisfied that the mayor was quite within the bounds when he held that the attention paid by respondent to the city's affairs did not fulfill the demands of the office under the charter. We are, therefore, of opinion that the demurrer to the separate defense should have been overruled. There was no showing that the appellant had collected any of the salary from the city, and therefore no judgment for damages should have been entered against him. Merritt v. Hinton, 55 Ark. 12 (17 S. W. 270); People v. Nolan, 101 N. Y. 539 (5 N. E. 446); Bier v. Gorrell, 30 W. Va. 95 (3 S. E. 30); U. S., er rel. Crawford, v. Addison, 6 Wall. 291. Judgment reversed, and cause remanded for further proceedings. DUNBAR, C. J., and ANDERS and HOYT, JJ., concur. Opinion of the Court-HOYT, J. [8 Wash. SCOTT, J. (dissenting). I dissent. No fact was found which was ground for removal. A personal inspection of the improvements under way was not required, nor was there any authority for individual supervision by any member of the board. The respondent may have taken other means to inform himself with reference to them aside from personal visits, and there was no showing that he was not well informed, and had not performed every duty enjoined upon him, as I view the record. [No. 1221. Decided March 31, 1894.] O. B. LITTELL, Assignee of the claim of Littell & Smythe Manufacturing Company, Appellant, v. P. B. M. MILLER et al., Respondents. FORECLOSURE OF MECHANIC'S LIEN PERSONAL JUDGMENT AGAINST CONTRACTOR-REVERSAL OF FORECLOSURE DECREE. An appeal from a decree of foreclosure of a mechanic's lien, which results in a reversal of the decree on account of the invalid. ity of the lien, will not affect the personal judgment obtained against the contractor in the foreclosure proceeding, when he has not joined in the appeal. Appeal from Superior Court, King County. Thomas T. Littell, for appellant. Stratton, Lewis & Gilman, for respondents. The opinion of the court was delivered by HOYT, J.-The appellant, or his assignor, furnished materials for the erection of a certain building in the city of Seattle. Not having been paid therefor, an action was brought against the alleged owner of the building and the Mar. 1894.] Opinion of the Court- HOYT, J. person to whom most of the materials had been furnished, who was alleged in the complaint to be the contractor for the erection of the building. It was also alleged in the complaint that the owner had himself procured to be furnished a small part of the materials. Upon the trial of the action in the superior court a judgment was rendered against the defendant Deal, to whom as contractor the most of the materials were furnished, for the amount remaining unpaid thereon, and against the alleged owner for the portion of the materials furnished directly to him, and both of such amounts were adjudged to be a lien upon the building, the sale of which was ordered to satisfy such lien. From this judgment and decree the defendant, P. B. M. Miller, the alleged owner of the building, took an appeal to this court, where it was held (3 Wash. 480, 28 Pac. 1035) that the suit for foreclosure of the lien could not be maintained against him, for the reason that he was not the sole owner of the property, and it was here adjudged that the cause should be reversed and remanded for further proceedings. When the cause was again brought to the attention of the superior court there were some questions raised and discussed before the case was called for final disposition, which are not raised upon this appeal. Upon the final consideration of the case the court came to the conclusion that the judgment against Deal had not been affected by the proceedings in the appellate court, for the reason that he had not joined in the appeal; that such judgment remained in force and was a final adjudication of the rights of the appellant growing out of the furnishing of the materials to said Deal as contractor. For that reason appellant was not allowed to introduce any proofs tending to show that there had been such a novation as to make the defendant Miller primarily liable for such materials. If this judgment was in force there could be little doubt |